New challenge to Texas voting laws

Posted Fri, August 23rd, 2013 3:13 pm by Lyle Denniston

New pressure in court to compel the state of Texas to get advance approval before it can enforce any voting laws, including its two-year-old voter ID law, will now be applied in an existing lawsuit in federal court in Corpus Christi. That lawsuit is unfolding before the same judge who was assigned on Thursday to handle the Obama administration’s new challenge to that law and to Texas’s desire to avoid direct court supervision of its election system.

The new developments illustrate the spreading attempt to limit the impact on the rights of minority voters and candidates of the Supreme Court’s June 25 decision in Shelby County v. Holder, which ended the requirement that Texas and eight other states with a history of race bias in voting obtain federal approval for any changes in their voting laws or procedures.

One day after the Shelby County decision, Democratic Rep. Marc Veasey of Fort Worth, an African American, and a group of minority voters, local officials, and political candidates sued the state over the voter ID law. Their lawsuit contended that the law “is one of the most stringent, if not most stringent, in the country.”

On Thursday, within hours after the Justice Department filed its own lawsuit against that law, in the same federal district court in south Texas, attorneys for the congressman and the others filed an amended version of that lawsuit. It added new constitutional claims, new challengers — Dallas County and a Hispanic civil rights group — and asked that U.S. District Judge Nelva Gonzales Ramos order Texas to get “preclearance” for changes it wanted to make in election laws or regulations.

In their initial filing two month ago, the challengers had asked for a ruling that the voter ID law — known as “SB 14” (for Senate Bill) — violated Section 2 of the Voting Rights Act of 1965 and the voting rights protections of the Fourteenth and Fifteenth Amendments. They also sought an order blocking enforcement of the law. They did not include a plea to put Texas under the preclearance regime of the 1965 law’s Section 3 — a provision left intact by the Supreme Court’s ruling.

The new version added a preclearance request, along with new claims of violations of the equal protection guarantees of the Fourteenth Amendment, the free-speech guarantees of the First Amendment, and — because of the cost of obtaining an ID that would satisfy the law — the Twenty-Fourth Amendment’s ban on a poll tax.

The state of Texas, the lawsuit contended, “has a long, notorious history of disfranchising voters by various methods and discriminating against classes of voters, especially on account of race and ethnicity. Senate Bill 14 of 2011 is another effort to achieve those unlawful ends.”

Texas, it added, “will continue to discriminate” unless it is put under an order to get clearance either from the district court in Corpus Christi or from the U.S. attorney general for any changes in voting laws or methods.

The Justice Department made the same plea under the 1965 law’s Section 3 in its lawsuit. Late Thursday, the Justice Department case was added to Judge Gonzales Ramos’s docket.

Texas officials have not yet filed answers to either of the lawsuits against its voter ID law, but top officials have issued public statements condemning the new challenges as interferences with Texas’s power to conduct its own elections as a sovereign state.

A Section 3 preclearance claim has been made in two other federal courts involving Texas voting laws — in a federal district court in San Antonio and in one in Washington, D.C. One uncertain question hanging over these multiplying claims is how different federal courts would sort out who supervised Texas, if more than one of them imposed a preclearance mandate and if they did so for different periods of time.

Because the Section 3 preclearance requirement has been seldom used, the courts have not developed a significant body of law to sort out how it actually is to work. Ultimately, that broad question probably will go to the Supreme Court for final resolution.

Prior to the Shelby County decision, preclearance requirements for states with a past history of discrimination in elections were imposed under Section 5 of the 1965 law. That provision, somewhat different in detail from the Section 3 preclearance regime now being sought, was made unenforceable by the Supreme Court when it struck down the coverage formula that put state and local governments under Section 5.

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On Friday, April 3, Justice Stephen Breyer spoke to students at the United Nations International School in New York City. The justice gave his talk remotely via video call, while self-quarantining at home in Massachusetts with his wife and daughter.